American Journal of International Law, 2015, Forthcoming, UC Irvine School of Law Research Paper No. 2015-17

Number of pages: 9Posted: 03 Feb 2015

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Date Written: November 25, 2014

Abstract

The EC-Seal Products decision of the WTO Appellate Body (AB) is of immense systemic importance since it is the first time that the AB has found that a trade ban on animal welfare grounds falls within the Article XX(a) exception for measures necessary to protect public morals. The AB’s finding implicates the legality of future trade restrictions on animal welfare grounds, as well as restrictions imposed on human rights grounds, such as labor rights. This case review and commentary for the American Journal of International Law first goes through the decision, step by step, and then critiques it for its lack of public reasoning. The AB report is cramped with judicial bureaucratise, and appears almost purposefully written to avoid engagement with an audience outside of trade insiders in Geneva and a few national capitals, a few academics, and some specialized WTO lawyers. Given the AB’s authority, this practice is unacceptable. This inward turn may not bode well for the WTO’s future.

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